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Alexander v. State3/5/1996
istencies in the evidence favorable to the State and thus counter the State's strategy in pointing out the inconsistencies in the evidence favorable to the defense.
The question is whether the jury might have been influenced by the error, not whether in our judgement the correct result was reached. The appellate court cannot substitute itself for the jury by deciding the untainted evidence is so overwhelming that if the jury had been compelled to rely upon it alone, it would have convicted. Such an application is the substituting of the appellate court for the jury as fact finder. The reviewing court should focus not on the weight of the other evidence of guilt, but rather on whether the error at issue might possibly have prejudiced the jurors' decision making.
This is always a difficult area of analysis for an appellate court. Certainly, this juror thought that this matter was important enough for him to approach the bailiff and ask him about it, and the State thought it was important enough in its evaluation of what importance might be placed upon the testimony to recall a witness to clarify the matter. This juror may have discussed this inconsistent evidence with the other jurors. It is impossible for us to say in the present case that the State's recalling a witness on the basis of that ex parte communication had no effect on the jury.
Whether declaring the error harmless would encourage the State to repeat it with impunity.
In the present case, a holding that this error was harmless could encourage the State to risk accepting this type of communication on the basis that it might not be considered harmful error. The State's error was in receiving this unauthorized communication and then not reporting it immediately to the court and opposing counsel. All such communications, whether solicited or not solicited, should be discouraged.
The appellate court should calculate as much as possible the probable impact of the error on the jury in light of the existence of the other evidence. If overwhelming evidence dissipates the error's effect upon the jury's function in determining the fact, and thus did not contribute to the verdict, then the error is harmless.
In the present case, it is difficult to calculate the probable impact of the error on the jury. Certainly, inconsistency in the evidence favorable to the State can be an important factor in the jury's evaluation of the credibility of witnesses. Thus, if this inconsistency had not been corrected by the State, this could have been a factor in discrediting the source of the State's evidence. We cannot say beyond a reasonable doubt that this error did not contribute to the verdict.
The judgement of the trial court is reversed, and the case is remanded for a new trial.
Ben Z. Grant, Justice
DISSENTING OPINION
I believe the error in this case was clearly harmless, so I respectfully dissent to the reversal. Using the tests for harmless error set out in the majority opinion, I make these observations: The integrity of the process was not compromised. The communication between the juror and the bailiff was not about the merits of the case or about any ultimate or critical issue. The bailiff did not attempt to answer the juror's question. Nor did the prosecutor attempt to communicate with the juror; he simply tried to clarify the testimony of an officer who had previously testified about the presence of a nonessential witness at the crime scene.
The source and nature of the error were innocuous. The juror and the bailiff acted in good faith, and there was no attempt on anyone's part, including the prosecutor, to contaminate t
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